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United States v. Marfo

United States District Court, D. Maryland

January 19, 2018

UNITED STATES OF AMERICA
v.
FRANK MARFO

          MEMORANDUM AND ORDER

          MARVIN J. GARBIS UNITED STATES DISTRICT JUDGE.

         The Court has before it Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [ECF No. 211], Petitioner's Amended Motion and Memorandum to Vacate, Set Aside, or Correct Judgments [ECF No. 277], Petitioner's Motion for Leave to Conduct Discovery [ECF No. 278], and the materials submitted relating thereto. The Court finds that a hearing is not necessary.

         I. BACKGROUND

         Petitioner Frank Marfo (“Marfo” or “Petitioner”) brings a 28 U.S.C. § 2255 motion challenging his federal life sentence for his convictions of murder for hire, conspiracy to murder a witness, bank fraud, conspiracy, and other offenses. In addition to the grounds stated in the original § 2255 motion [ECF No. 211], Marfo presented in his Amended Memorandum of Law [ECF No. 277] a ground regarding a time zone disparity in the cell-tower evidence used during his trial. The Court will evaluate all asserted grounds herein.

         Marfo participated in “a scheme to steal money orders and checks and to defraud banks in Maryland and elsewhere” from May 2009 to November 2011. United States v. Marfo, 572 F. App'x 215, 218 (4th Cir. 2014). This scheme involved a theft of money orders and checks from rent deposit boxes located in Maryland, Virginia, and Delaware. Id. Tavon Davis (“Davis”) and Marfo recruited persons to open fraudulent accounts at banks in Maryland and New Jersey. Id. These accounts were used in the scheme for depositing “between $1 million and $1.5 million worth of stolen money orders.” Id.

         In May 2009, Davis recruited a young man, Isaiah Callaway (“Callaway”), to participate in the scheme. Id. Callaway was arrested by Baltimore County police on December 29, 2010 while participating in the scheme and was charged with possession of counterfeit documents and theft. Id. at 218-19. After arrest, Callaway was interviewed by detectives, admitted his participation in the bank fraud scheme, and was placed on pretrial release. Id. at 219.

         Following Callaway's release, Davis contacted him and referred him to Attorney Larry Feldman (“Feldman”), who became his attorney. Id. Thereafter, federal law enforcement officials became interested in interviewing Callaway about the bank fraud scheme and contacted Feldman to request interviews from Callaway. Id. Feldman, although counsel for Callaway, informed Davis about the federal officials' intention to interview Callaway in an investigation that could lead the federal investigators to Davis and Marfo. Id.

         Between April 5, 2011 and April 11, 2011, Davis and Marfo communicated and met several times with Bruce Eric Byrd (“Byrd”) to discuss the threat to the fraud scheme posed by the arrest and possible cooperation of Callaway. Id. This included discussions about having Byrd murder Callaway to prevent him from providing the investigators with information about the bank fraud scheme. Id. On April 11, 2011, Callaway was found shot dead in a car in Baltimore. Id.

         In May 2011, Michael Copeland (“Copeland”), another participant in the scheme, told the police that Callaway was murdered by a triggerman (later determined to be Byrd), who had been hired by Davis and Marfo. Id. Copeland agreed to record his future meetings with Davis. Id. In those recordings, Davis incriminated himself and stated that Byrd and Marfo were “just as involved as he was.” Id. Davis was subsequently arrested in November 2011 and agreed to cooperate against Marfo and Byrd, including confirming that Marfo contributed the money given to Byrd for killing Callaway. Id. With Davis's cooperation, Byrd and Marfo were arrested. Id. at 219-20. Davis and Byrd both entered into plea agreements including benefits for cooperating against Marfo. Id. at 220. Davis testified at Marfo's trial, but Byrd did not.

         Following his conviction on all counts, Marfo was sentenced to concurrent sentences of life imprisonment on four counts, a consecutive sentence of 120 months on another count, and concurrent sentences of 57 months on two counts. Id. The Fourth Circuit affirmed his conviction and sentence on May 23, 2014. Id. The Supreme Court denied certiorari on November 3, 2014. Marfo v. U.S, 135 S.Ct. 468 (2014).

         II. MOTION TO VACATE, SET ASIDE, OR CORRECT JUDGMENTS

         A. Legal Standard

         To prevail on a 28 U.S.C. § 2255 claim, the petitioner bears the burden of proof to show, by a preponderance of the evidence, that his sentence is unlawful on one of several specified grounds. Berry v. United States, 884 F.Supp.2d 453, 457 (E.D. Va. 2012).

         A district court must resolve a Section 2255 petition in two steps. United States v. Pettiford, 612 F.3d 270, 277 (4th Cir. 2010). First, the district court “must determine whether the prisoner has met his burden of showing that his sentence is unlawful.” Id. Second, “if the prisoner's sentence is found unlawful on one of [the specified] grounds, the district court should grant the prisoner an ‘appropriate' remedy.” Id.

         One of the specified grounds is the denial of a Sixth Amendment right to reasonably effective assistance of counsel. To prevail, the petitioner must satisfy the Strickland standard of showing that counsel's performance was deficient, and that the deficient performance prejudiced the petitioner's defense. See Rodriguez v. Bush, 842 F.3d 343, 346 (4th Cir. 2016) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

         To establish “deficient performance, ” the petitioner must show that the counsel's representation “‘fell below an objective standard of reasonableness, ' as measured by ‘prevailing professional norms.'” United States v. Powell, 850 F.3d 145, 149 (4th Cir. 2017) (internal citations omitted). This is a high bar and requires “‘showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.'” Id. The court must avoid viewing counsel's performance through the distorting effects of hindsight, and must be satisfied that the petitioner has overcome “‘a strong presumption' that [his] counsel's conduct [fell] within the wide range of reasonable professional assistance.” Id.

         To establish prejudice, “‘[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'” Rodriguez v. Bush, 842 F.3d 343, 346 (4th Cir. 2016) (internal citations omitted). A reasonable probability is a “‘probability sufficient to undermine confidence in the outcome.'” Id.

         B. Discussion

         Most of Marfo's asserted claims allege ineffective assistance of counsel, and one claim (Claim 4)[1] alleges a violation of his due process rights under Brady v. Maryland, 373 U.S. 83 (1963).

         i. Claim 1: Defendant's Appearance in Jail Clothing

         Petitioner argues that counsel provided ineffective assistance by allowing the jury to see him in jail clothes during voir dire and opening statements and for not raising the issue on direct appeal. Am. Mot. at 23, ECF No. 277. Petitioner alleges that wearing prison clothing undermined his right to a fair trial, was not based upon any sound trial strategy, and prejudiced him by communicating to the jury that he was too dangerous to be released before trial. Id. at 25.

         The Court finds, however, that Marfo made a strategic decision to wear the jail clothing consistent with a trial strategy. He discussed with his counsel before the decision, and wore the clothing to paint himself as a victim of co-defendant Davis, to show that he has conceded the fraud and is already being punished for it (so as to maintain his credibility when he contests his murder charge), and to show that he is poor. Gov.'s Resp. at 58, ECF No. 231. Defense counsel made references to the Petitioner's jail clothes in the opening statement and confirmed to the Court that this was Petitioner's intention at the time. Id. at 60-63.

         On the first day of trial, Attorney Purpura brought the jail clothing issue to the Court's attention and explained that, as part of the opening, the defense would draw attention to the fact that Marfo has been detained:

THE COURT: You say he's going to be wearing this during the trial?
MR. PURPURA: Yes. In the opening I think Mr. Bussard is going to make it clear that he is detained, and has been detained since the day he was arrested. That's it. We can take care of it.
THE COURT: Okay. I mean if that's what you want, that's okay.

Trial Day 1 Tr. at 2:13-20 (ECF No. 147).

         On a Section 2255 motion, the Court must afford a high degree of deference to counsel's trial strategy. Powell, 850 F.3d at 149 (“‘[j]udicial scrutiny of counsel's performance must be highly deferential.'”) (internal citations omitted). The Court finds that Attorney Purpura's trial strategy was reasonable under the circumstances and does not establish deficient performance.

         Attorney Purpura submitted an affidavit explaining that it was “part of our trial strategy to concede the fraud conviction and contest the murder . . . [b]y admitting the fraud, we had hoped that Marfo's claim of innocence for the murder would be more credible.” Purpura Aff. at 1-2, ECF No. 231-3.

         The Court finds no basis to hold that counsel's trial strategy “‘fell below an objective standard of reasonableness.'” Powell, 850 F.3d at 149. The risk that the strategy itself may have been ineffective is a risk that all litigants must face at trial.

         Furthermore, Petitioner did not raise this issue on direct appeal and may not raise it now. United States v. Landrum, 93 F.3d 122, 124 (4th Cir. 1996) (“A claim raised for the first time in a § 2255 motion generally is not cognizable in federal court unless the petitioner demonstrates ‘both (1) ‘cause' excusing his . . . procedural default, and (2) ‘actual prejudice' resulting from the errors of which he complains.'”) (internal citations omitted). The Court does not find any excusable cause for failing to raise this issue on direct appeal.

         Accordingly, the Court finds that Marfo is not entitled to Section 2255 relief on the basis that trial counsel made the strategic decision to have him dress in jail clothing.

         ii. Claim 2: Attorney Catherine Flynn

         Petitioner argues that his trial counsel provided ineffective assistance by failing to investigate and call Attorney Catherine Flynn, one of Davis's former defense attorneys. Am. Mot. at 26-27, ECF No. 277. He alleges that Ms. Flynn would have testified that she believed that co-Defendant Davis was trying to “set up” Marfo, in order to protect himself from murder charges. Id. at 28. This testimony, Petitioner claims, would have neutralized the damaging testimony from Attorney Murphy, who testified to what Davis told him about the murder conspiracy involving Marfo. Id. at 30.

         The Government states that counsel's decision to not investigate and call Attorney Flynn is a tactical decision that cannot be subject to challenge. Gov.'s Resp. at 72, ECF No. 231. Moreover, the Government argues that Attorney Flynn could not have impeached Attorney Murphy because Davis never incriminated himself to Attorney Flynn, and the defense attorneys for Marfo were aware of that fact. Id. at 73-74. Finally, the Government argues that Petitioner's claim is based on the inadmissible testimony of an “intern” working for Marfo's defense counsel stating what Attorney Flynn allegedly said to the intern out of court. Id. at 76.

         Attorney Flynn has submitted an affidavit that describes the conversation she had with Miranda Dore, the “intern” who worked in the office of Petitioner's defense attorney. Flynn Aff., ECF No. 231-2. Ms. Dore had previously submitted an affidavit to Petitioner's original Motion to Vacate, attributing certain statements to Attorney Flynn, [2] who did not have an opportunity to confirm the accuracy of those statements. Compare Dore Aff., ECF No. 214-1, with Flynn Aff. ¶¶ 11-17, ECF No. 231-2. Attorney Flynn states in her affidavit that she “never stated that [she] suspected that Mr. Davis was planning or intended to ‘set someone up' or to do anything in that vein, ” “never suspected that Mr. Davis was seeking my advice in order to ‘set someone up, '” and “never heard any recordings of Davis.” Flynn Aff. ¶¶ 18-20, ECF No. 231-2. She states that she did not hold the opinion, belief, or knowledge that Davis intended to “set anyone up.” Id. ¶ 24.

         The intern testimony, if offered to prove what Attorney Flynn said about her feelings regarding Davis's motives, would be inadmissible hearsay. Even if Attorney Flynn were to testify that she had feelings and suspicions that Davis made false statements to Attorney Murphy to set up Marfo, those feelings would not constitute proof of the truth or falsity of what Davis said. Moreover, the statements in the intern's affidavit regarding what Attorney Flynn said are largely refuted by the affidavit of Attorney Flynn herself.

         The Court does not find that Petitioner has carried his burden of establishing entitlement to relief on the basis of Dore's affidavit, and declines to provide a remedy on the basis of her statement about what Attorney Flynn allegedly said she had believed at the pertinent time.

         The Court must give a high degree of deference to defense counsel's decision on which witnesses to present to the jury. United States v. Dyess, 730 F.3d 354, 364 (4th Cir. 2013) (“we give counsel wide latitude in determining which witnesses to call as part of their trial strategy”); Wilson v. Greene, 155 F.3d 396, 404 (4th Cir. 1998) (“[d]ecisions about what types of evidence to introduce ‘are ones of trial strategy, and attorneys have great latitude on where they can focus the jury's attention and what sort of mitigating evidence they can choose not to introduce'”). Although it is true that courts have held counsel's representation to be deficient if counsel fails to investigate and interview critical prospective witnesses, Huffington v. Nuth, 140 F.3d 572, 580 (4th Cir. 1998) (citing cases), Attorney Flynn's proposed testimony about her suspicions did not put her into this category.

         The Court finds that the Petitioner has not carried his burden of showing, by a preponderance of the evidence, that he is entitled to relief from his sentence because of his attorney's decision not to call Attorney Flynn as a witness.

         iii. Claim 3: Byrd's Refusal to Testify at Trial

         Petitioner contends that his counsel operated under a conflict of interest by advising Byrd that if Byrd testified in favor of Marfo at Marfo's trial, the Government would give Byrd a life sentence. Am. Mot. at 31-32, ECF No. 277. This advice allegedly caused Byrd to plead the Fifth Amendment and refuse to testify. Id. at 32. Hence, Petitioner argues, he was prevented from eliciting testimony from Byrd that would have destroyed Davis's credibility and refuted his testimony. Id. at 33.

         The Government disputes the factual basis for the claim and asserts that the evidence presented by Marfo to support this claim (i.e., Marfo's own testimony of an out of court statement allegedly made by Byrd) is hearsay and inadmissible to prove the truth of Byrd's alleged out of court statement. Gov.'s Resp. at 83-84, ECF No. 231.

         A petitioner who claims ineffective assistance of counsel based on a conflict of interest must show that his or her attorney labored under an “‘actual conflict of interest'” which “adversely affected his lawyer's performance.'” Stephens v. Branker, 570 F.3d 198, 209 (4th Cir. 2009) (internal citations omitted). An actual conflict of interest exists when the petitioner's interests diverged from his attorney's with respect to a “material factual or legal issue or to a course of action.” Id. The adverse element requires a showing that the counsel took action for one client (or himself) that is “necessarily adverse” to another client, or that the counsel failed to take action for one client (or himself) for fear of injuring another client. Id. Moreover, the counsel's action must have been causally related to the actual conflict. Id.

         Proof of any incorrect “advice” that Petitioner's counsel gave Byrd (who was not his client) would not establish that “petitioner's interests diverged from his attorney's.” Stephens, 570 F.3d at 209. Petitioner had his own counsel (Attorney Purpura and Attorney Bussard), and Byrd also had his own counsel (Attorney Curlett). Purpura Aff. at 3, ECF No. 231-3. On the day in question, Purpura wished to interview Byrd to see if Byrd's testimony would corroborate Marfo's story and determine whether Byrd would testify for Marfo. Id. The record shows that Byrd's decision to not testify was made after he had the opportunity to speak to his own counsel. As Mr. Purpura states in his affidavit:

With the arrival of his attorney, Mr. Byrd directed a question that appeared to be to me, concerning that if he testified would that effect [sic] his plea. I said that is an issue you should discuss with your attorney and Mr. Bussard and I then waited outside the interview booth. Approximately five to ten minutes later, Mr. Curlett confirmed that Mr. Byrd if called by defense would invoke his Fifth Amendment right against self-incrimination. I wanted Marfo to hear Mr. Byrd invoke his Fifth Amendment Right and requested that this take place in open court with Marfo present. After a lengthy colloquy which is now part of this record between Mr. Byrd, Judge Garbis and Mr. Curlett, Mr. Byrd elected not to testify.

Id. Purpura states his understanding that Byrd chose not to testify for Marfo in part because Byrd had already stipulated to contrary facts in his plea agreement and doing so would have ...


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